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Abstract: Transcript of the Reasons for Sentence
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R. v. Nitsiza, 2013 NWTSC 73 S-1-CR-2012-000051
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
MORAN LEE NITSIZA
Transcript of the Reasons for Sentence delivered by The
Honourable Justice K. Shaner, in Yellowknife, in the
Northwest Territories, on the 3rd day of September, 2013.
APPEARANCES:
Ms. J. Porter: Counsel on behalf of the Crown
Mr. S. Petitpas: Counsel on behalf of the Accused
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Charge under s. 151 C.C.
Ban on Publication of Complainant/Witness
pursuant to Section 486.4 of the Criminal Code
1 THE COURT: Today I have to impose a
2 sentence on you, Mr. Nitsiza. You were convicted
3 of sexual interference under section 151 of the
4 Criminal Code following a jury trial in Behchoko
5 held on June 11th to June 13th this past summer,
6 2013.
7 The first matter I want to deal with is the
8 matter of pretrial and presentence custody for
9 Mr. Nitsiza and in particular the credit that he
10 should receive for that. Specifically, the
11 question is whether he should receive enhanced
12 credit of 1.5 days for every day served in
13 presentence custody or the straight one-to-one
14 credit or a combination of the both of those.
15 Both the Crown and defence agree that Mr.
16 Nitsiza has been on remand since August 12th,
17 2012. Mr. Petitpas provided some information
18 from correction officials that except for the
19 months of February and March of 2013, when Mr.
20 Nitsiza displayed some behavioural problems, he
21 would have received full remission had he been a
22 sentenced prisoner. Based on that, I am urged to
23 grant enhanced credit for the entire period of
24 time that Mr. Nitsiza spent in presentence
25 custody.
26 Section 719(3.1) of the Criminal Code allows
27 the court to grant credit at the rate of up to
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1 one and one-half days for each day spent in
2 presentence custody if the circumstances justify
3 it. In using the word "justify" it is clear that
4 Parliament did not intend that the circumstances
5 have to be exceptional; however, it is also clear
6 that the circumstances have to justify it and
7 they have to be individual to the accused. That
8 was the conclusion reached by the Manitoba Court
9 of Appeal in R. v. Stonefish, which is cited at
10 2012 MBCA 116 and which has been applied and used
11 by this court in the past.
12 To show that the circumstances that justify
13 enhanced credit are individual to the accused,
14 there has to be evidence of those circumstances,
15 whether that is through affidavit, live testimony
16 or, as here, counsel's sentencing submissions.
17 In my view, however, it not enough to simply
18 submit that a prisoner on remand would have
19 earned remission had he or she been a serving
20 prisoner, and I agree with the Crown that to
21 adopt that argument would defeat entirely the
22 amendments to the Criminal Code which created the
23 general rule that credit should be granted on a
24 one-to-one basis unless justified in the
25 circumstances. Remission is something that is
26 open to all serving prisoners so it is difficult
27 to see how it could be seen as a circumstance
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1 that is individual to Mr. Nitsiza. That said, in
2 some circumstances the decision to seek a
3 presentence report and the delay that is
4 necessarily entailed with that is a circumstance
5 that is considered individual to the accused and
6 one which justifies enhanced credit.
7 A presentence report is a very useful tool
8 for the court in determining an appropriate
9 sentence. It allows the court to have insight
10 into the accused - who they are, their family,
11 their education, their health and, perhaps most
12 helpful, the potential to benefit from certain
13 types of sentences. But it does take time to
14 prepare presentence reports and during that time
15 the accused may otherwise have been serving their
16 sentence and earning remission.
17 I pause to emphasize that waiting for a
18 presentence report will not always or in every
19 case be a circumstance that justifies enhanced
20 credit. In this case, however, I find that it
21 is.
22 Mr. Nitsiza will get enhanced credit at a
23 rate of 1.5 days for each of the 92 days that he
24 served from June 14th, 2013, until today, and
25 that works out to 138 days of credit at the 1.5
26 rate. The remaining time, that is the 274-day
27 period from August 12th, 2012, until June 13th,
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1 2013, will be credited on a one-to-one basis.
2 The total presentence credit will therefore be
3 one year and 47 days.
4 I now turn to the circumstances of the
5 offence, which I am just going to summarize.
6 The victim is currently 15 years old. When
7 she was 13 or 14, she and Mr. Nitsiza, who was
8 then 19 and 20, had a sexual relationship.
9 At the trial she described six specific
10 incidents where she and Mr. Nitsiza engaged in
11 sexual intercourse. The victim testified that
12 Mr. Nitsiza discussed with her the need to keep
13 their relationship a secret. The evidence was
14 clear that they met surreptitiously. On one
15 occasion he asked her to hide her face when they
16 were together among other people, and on another
17 occasion he gave her a sweater to wear it seemed
18 for the purpose of hiding her identity.
19 Initially, the victim lied to Mr. Nitsiza
20 about her age. She told him either on the
21 telephone or through Facebook that she was 16 or
22 17. She said she wanted him to like her.
23 However she did say during her testimony that she
24 told Mr. Nitsiza what her real age was during
25 their relationship.
26 It is possible that the jury believed that
27 the victim told Mr. Nitsiza her real age. It is
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1 also possible that the jury found that Mr.
2 Nitsiza did not make the inquiries he ought to
3 have to determine her real age and accordingly he
4 ought to have known her real age. Ultimately,
5 however, what the jury found on that point does
6 not make a difference. The element of the
7 offence is made out either way by the evidence,
8 and that is beyond a reasonable doubt.
9 At one point when the victim expressed that
10 she did not want to see Mr. Nitsiza, he
11 threatened to kill himself.
12 The Crown suggested that Mr. Nitsiza used
13 the victim solely for his own sexual
14 gratification. While that is certainly a
15 possibility, I am unable to draw that conclusion,
16 that that was his sole purpose in his
17 relationship with her. The evidence focused on
18 the sexual relationship between the two of them,
19 but there was very little, if any, evidence about
20 the emotional side of the relationship.
21 I am also unable to conclude beyond a
22 reasonable doubt that the victim and Mr. Nitsiza
23 had sexual intercourse on ten or more occasions.
24 The evidence about the six specific incidents was
25 very detailed, however the victim was equivocal
26 in her testimony about incidents other than
27 those. She seemed also uncertain about the
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1 number of times they had intercourse. It could
2 have been ten, it could have been 15. So while
3 there may be a strong possibility that the two of
4 them had sex on more occasions than what was
5 described by the victim, it was not in my view
6 proved beyond a reasonable doubt and thus I do
7 not rely on that as a fact in this sentencing.
8 Mr. Petitpas provided very valuable
9 information to the court about Mr. Nitsiza's
10 background and circumstances.
11 I have also had the benefit of reading a
12 very thorough set of presentence reports that
13 were prepared for this hearing. They have a
14 great deal of helpful information in them about
15 Mr. Nitsiza's background.
16 He is 22 years old and he was born in Wha'Ti
17 and lived there until he was five. At that point
18 his parents separated and he moved with his
19 mother to Yellowknife. She eventually lost her
20 job and her housing due to substance addiction.
21 She was a residential school survivor, as is Mr.
22 Nitsiza's father. Consequently, Mr. Nitsiza
23 wound up living in a number of foster homes,
24 which is never an optimal family situation. He
25 was separated from his family, from his
26 community, from his language, and from his
27 culture. He did not complete high school and
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1 given his circumstances I am not surprised by
2 that. In 2005, when he was 14, he was diagnosed
3 with FASD.
4 Despite his young age, Mr. Nitsiza has a
5 very lengthy criminal record that includes
6 convictions both as a youth and as an adult for
7 very serious crimes. Among these are convictions
8 for sexual assault, robbery, and uttering
9 threats. The record also has some 30 convictions
10 against the administration of justice and several
11 property offences. There is really no break in
12 the record either, it is continual, and the
13 convictions have been sustained over a long
14 period of time, relatively speaking.
15 Sentencing is a highly individualized
16 process, and the principles and objectives of
17 sentencing are set out in the Criminal Code. The
18 emphasis that is placed on any particular
19 objective or any particular set of objectives
20 will vary with the nature of the offence, the
21 circumstances of the offender, the circumstances
22 of the victim, and any particular requirements of
23 the Criminal Code or the common law respecting
24 that particular offence.
25 Where the offence involves the abuse of a
26 person under 18 years of age, as is the case
27 here, the primary considerations are the
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1 objectives of denunciation and deterrence, both
2 specific and general. There are principles to
3 guide the court in imposing sentence and the
4 emphasis that is to be placed on each of those
5 objectives. The primary principle is
6 proportionality, which means that the punishment
7 imposed must suit the crime and must be
8 proportional to the moral blameworthiness of the
9 offender. The judge also has to consider the
10 mitigating and aggravating factors and the
11 sentence is to be increased or reduced
12 accordingly. Evidence that the victim was a
13 person under 18 is specifically deemed to be an
14 aggravating factor.
15 Judges are also bound to recognize that
16 there should be similar treatment for like
17 offences and offenders and that prison is a last
18 resort.
19 In the case of aboriginal offenders, the
20 courts must consider all available sanctions
21 other than imprisonment that are reasonable in
22 the circumstances. The purpose of this is to
23 recognize and address the overrepresentation of
24 aboriginal people in our correctional system and
25 to craft sentences that will ultimately address
26 this.
27 In this case there are a number of
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1 aggravating circumstances:
2 It was not an isolated incident; the sexual
3 intercourse took place over the course of several
4 months.
5 There is a significant difference between
6 the age of the victim and the age of Mr. Nitsiza,
7 and the victim was very young.
8 Mr. Nitsiza's criminal record, which I spoke
9 of earlier, is also aggravating.
10 As I spoke of earlier, the meetings and the
11 acts were arranged and carried out in secret and
12 the two of them discussed the need to keep the
13 relationship hidden. This can only lead to the
14 conclusion that Mr. Nitsiza was completely aware
15 of what he, as an adult, was doing with a 13- to
16 14-year-old victim and that it was wrong.
17 There are also some mitigating factors
18 however. Among them are this morning when Mr.
19 Nitsiza stood up and apologized for his actions
20 and took responsibility for what he did.
21 As well, Mr. Nitsiza, you are very young. I
22 agree with the Crown's submission that moral
23 culpability is perhaps lower when one lacks the
24 wisdom that comes with hindsight and the
25 hindsight that comes with age.
26 I also agree with Crown that someone
27 youthful is more amenable to rehabilitation, but
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1 I am also cognizant of the point that Mr.
2 Nitsiza's record does not readily reflect that he
3 is gaining wisdom or is amenable to
4 rehabilitation.
5 The Crown seeks a custodial sentence of
6 two-and-a-half to three years, and the defence
7 suggests that a sentence of 14 to 18 months is
8 more appropriate.
9 I have considered Mr. Nitsiza's aboriginal
10 status and his history, and I have given serious
11 thought to whether the objects of denunciation
12 and deterrence can be achieved through a jail
13 term along the lines of what the defence proposes
14 or some combination of incarceration and
15 probation.
16 It is an understatement to say that Mr.
17 Nitsiza's life has not been easy. The
18 instability of his family and home life coupled
19 with having a brain injury in the form of FASD,
20 means that he has not realistically had the same
21 opportunities as others to make the right
22 choices. His life and circumstances have been
23 shaped directly by the experiences of his parents
24 and the residential school system and the
25 sadness, displacement, addictions, and all the
26 other fallout from that.
27 The author of the presentence report
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1 recommends against a probationary sentence and
2 she expresses the view that Mr. Nitsiza would
3 benefit from the opportunity to participate in
4 intensive programming in the areas of sexual
5 offending, anger management, family counselling,
6 and substance abuse. Presumably, Mr. Nitsiza
7 would have access to this type of programming at
8 his fingertips in a correctional institution, but
9 it might not be so available in a community, even
10 one as large as Yellowknife. The opinion
11 expressed in the presentence report is of course
12 not binding on me, but I share the author's view.
13 Mr. Nitsiza's record reflects that he's been
14 incapable of complying with the requirements of a
15 community-based sentence and that is borne out in
16 30 some odd convictions for offences against the
17 administration of justice.
18 The sentence in this case also has to give
19 priority to the objectives of denunciation and
20 deterrence and those objectives cannot be
21 achieved in these circumstances with a
22 community-based sentence, nor can they be
23 achieved by a shorter period of incarceration.
24 Sexual crimes against children (and the
25 victim in this case was a child) are particularly
26 serious. They are vulnerable, and they rely on
27 adults to nurture them, to protect them, and to
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1 ensure that their needs are met. They rely on
2 adults to guide them and, above all, they rely on
3 adults to do the right thing. It falls on adults
4 to respect this vulnerability and reliance, and
5 the law accordingly takes a very dim view of
6 conduct that fails to respect these things and
7 the boundaries that go along with them. Those
8 who commit offences against children bear an
9 extremely high degree of moral blameworthiness.
10 This case is no exception.
11 I have reviewed the cases submitted by
12 defence counsel. There are facts in Bjornson and
13 Feng that make them very different and somewhat
14 less helpful in this case than in the case of R.
15 v. King. As pointed out by the Crown in the Feng
16 case, the accused was operating under a mistake
17 of law for example. There are also features in
18 R. v. King, however, that distinguish it from the
19 circumstances here. Among them the age
20 difference was greater and the offender was far
21 older than Mr. Nitsiza. Nevertheless, I find
22 that that case falls very close to the situation
23 that we have here, particularly the planning that
24 went into the meetings and the very deliberate
25 secrecy and deceit that was demonstrated by the
26 offender. In all of the circumstances, a longer
27 period of incarceration is warranted.
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1 Mr. Nitsiza, can you please stand up.
2 Upon being convicted of sexual interference
3 and upon considerations of the circumstances and
4 the nature of the offence as well as your own
5 personal circumstances and your past, I sentence
6 you to a term of incarceration of two years and
7 six months. That time will be reduced by the
8 time of credit to you in your presentence custody
9 which, as I said earlier, is one year and 47
10 days.
11 You can sit down, Mr. Nitsiza.
12 There will also be an order for bodily
13 fluids to be taken from Mr. Nitsiza for a DNA
14 analysis as well as an order requiring him to
15 comply with the Sex Offender Information
16 Registration Act pursuant to section 490.012 of
17 the Criminal Code and that will be in effect for
18 20 years.
19 As requested by defence, I agree that there
20 should be no victims of crime surcharge.
21 Mr. Nitsiza, do you understand the sentence?
22 THE ACCUSED: Yes.
23 THE COURT: Mr. Nitsiza, I want you to
24 know that you are not doomed by your past, you
25 are not doomed to a life of crime, but you have
26 to take steps to help yourself and become
27 rehabilitated. You have some very specific
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1 issues, including FASD, and if you take steps to
2 deal with that, that will help you to make
3 choices so that you can live a productive life
4 and you are not going to spend a whole bunch of
5 time in your future in jail. You are not doomed
6 to a life of crime; you can make choices.
7 When you go to jail there will be all kinds
8 of programs available to you to help you. Do not
9 just pay them lip service and do not just use
10 them to pass time. Get involved, ask for as much
11 help as you need, and ask for the help that you
12 need so that you do not need to come back. And
13 when you are released, ask for help from
14 Probation Services, ask them to help you set up
15 supports so that you do not re-offend. You need
16 to do that. You are very young, you are capable
17 of change. Everyone is capable of change.
18 Is there anything else, counsel?
19 MS. PORTER: No, Your Honour.
20 MR. PETITPAS: No, Your Honour.
21 THE COURT: As I said, thank you very much
22 for your very helpful submissions.
23 Mr. Nitsiza, I do wish you the best. Work
24 hard.
25 Thank you.
26 ..............................
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1 Certified to be a true and
accurate transcript pursuant
2 to Rule 723 and 724 of the
Supreme Court Rules of Court.
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5 Annette Wright, RPR, CSR(A)
Court Reporter
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